By Yang Fan
[Yang Fan is a prominent Chinese economist. For his analysis of how corruption is a structural problem in Chinese society see his Southern Weekend article summarized at The Pathological Expansion of the Selfish Interests of Government Departments and The Causes of the Pathological Expansion of the Interests of Government Departments available in the Society category at http://www.usembassy-china.org.cn/english/sandt/sandsrc.htm ]

[This translation is from the above US Embassy in Beijing website]

In theory I agree that corruption acts as a lubricant during the gradual process of reform. Yet there should be some limits to corruption. The situation become dangerous when corruption harms three kinds of people: first the poor and the old, second, children, and third, the sick. Of course you will object that the corrupt couldn't care less. Yes, that's right. Corruption is still spreading.
I understand that the medical accidents now comprise the largest category of consumer complaints. Not one of these complaints has been resolved. The problem is not poor enforcement; it is the law itself. The law does not treat the sick as consumers and does not consider health workers as belonging to the "service sector". The old argument that "health is a kind of welfare to save lives and assist the injured" is so far removed from reality that things are really more like its opposite.

First, the welfare health system supported by public funds essentially exists in name only. People have to pay for most medical services on their own. Considering health to be still a "welfare activity" has for some time been a major obstacle to the development of proper physician - patient relationship and to the law applicable to that relationship.

Second, the so-called "welfare" health system in the past principally provided free medical services for a small group of officials. Today many hospitals have established many special services for a fee, which are mainly directed towards wealthier people. Medical morality in China has declined sharply. Many doctors take a "red package" [special personal payment] to perform an operation. There are more and more cases of physicians refusing to save lives if they don't first get a deposit. "Saving lives and helping the injured" is fundamental medical morality and is essential. However medical morality is not enough for resolving physician - patient disputes. Medical morality is not enough to protect the basic rights of the patient.

Third, we must at the outset come to a definition of the nature of the physician - patient relationship. The physician - patient relationship is clearly a relationship between a person who provides a service and another person who receives a service so it clearly belongs to the tertiary sector. Thus economic benefits and the resolution of legal disputes come into the picture. Patients must gain an appropriate legal status but this is not possible until an adequate law is promulgated.
But we can't wait because people's lives are at stake. Therefore consumer protection laws should be used in the resolution of disputes between physicians and patients. According to the press, Zhejiang Province and some other areas have started to use "consumer protection laws" to protect patients. This can at least make it easier for patients to sue and receive some compensation.

Fourth, there are people who speak up for the physicians saying, that this is unfair. The human body is extraordinary complex and accidents do happen. If the physician is responsible for everything, who then will dare to be a physician? Then there is another problem involved with helping the sick and injured, especially people who are in critical condition. When someone needs immediate care, the hospital and physician have absolute monopoly power and control. How can the patient be protected in that situation? The patient can only wait for rescue from the physician.
If the patient dies or is injured and too large a compensation claim is brought, then a dispute arises between the patient and the physician. The law should favor the patient somewhat. The nature of the loss for the physician and for the patient is completely different. A healthy society should make protecting patients a priority. Hospitals should take the initiative to resolve disputes. If they cannot be resolved through negotiation then society should provide free and convenient legal advice to patients.

Fifth, since there is no law on the relationship between physicians and patients, physician - patient disputes can only be resolved by administratively by the health authorities. However, hospitals do not have a duty to provide medical records and medical histories to the patient. The health administration departments also organize the committee on medical accidents, so patients don't have many rights. If the patient does not accept the results of the administrative settlement and decides to sue, the patient does not have the right to demand evidence. Thus, under the legal principle, "he who sues is responsible for furnishing the evidence", this amounts to not allowing patients to sue. These administrative measures were supposedly established in the interests of the people however in practice they are disadvantageous to patients. Therefore, if at first consumer protection laws are applied, this will give the patient a suitable legal status.

Sixth, resolving the problem of income for hospitals. The old way of setting up pharmacies in hospitals to bring in income must be changed. In most cases the patient should go to a local pharmacy and buy the medicine. Some physicians could cooperate with pharmacies. Medical fees should be set according to the level of the physician, which might vary over a considerable range. If a 200 RMB fee was required to sign-up to see a physician and additional fees might be collected for various tests, the income problem for physicians and hospitals would be solved. Hospitals would no longer need to take a cut on all the drugs being sold. Claims for medical disputes should be paid from malpractice insurance, which both hospitals and physicians would pay for. The government should, with the help in society, invest in basic hospital facilities. Lotteries and other methods might be used to raise money.

Seventh, The special nature of the "special services" should only be in that the consumer is a patient. No only profits can be considered. It is just a matter of suing after someone has died. All society is responsible. Any person, anywhere, at anytime who is seriously ill or injured should first be saved. Payment can be discussed later. If the sick person doesn't have any money, some payment can be taken from a fund to saving the sick and injured. All society should support this fund. Every person has the responsibility to rescue the sick and injured. People need to be aware and needs to be able to do this.

Finally, let me say that if a society is so corrupt that it "eats" sick people, old people, children and the poor, it is in danger.